Himachal Pradesh High Court
_____________________________________________________________________ vs State Of Himachal Pradesh & Ors on 27 May, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.16319 of 2024
Date of Decision: 27.05.2025
_____________________________________________________________________
Sandeep Kant Sharma .........Petitioner
Versus
State of Himachal Pradesh & Ors. .......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Mr. Onkar Jairath, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General, Mr. Rajan
Kahol, Mr. Vishal Panwar & Mr. B.C. Verma,
Additional Advocate Generals, with Mr. Ravi
Chauhan, Deputy Advocate General, for
respondents-State.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Petitioner herein, who at present is working as Executive
Engineer at Jal Shakti Division, Thunag, District Mandi, Himachal
Pradesh, is aggrieved of impugned transfer order dated 24.12.2024
(Annexure P-2), whereby he has been transferred from afore station to
Jal Shakti Circle, Reckong Peo, District Kinnaur, Himachal Pradesh,
vice Mr. Budhi Chand, respondent No 3.
2. Precisely, the grouse of the petitioner, as has been
highlighted in the petition and further canvassed by Mr. Onkar
Jairath, learned counsel representing the petitioner, is that impugned
transfer order issued by the respondents is not sustainable in the eye
of law as same has been passed in violation of Transfer Policy. While
referring to notification dated 28.06.2023 (Annexure P-1), Mr. Jairath,
apprised this Court that prior to issuance of impugned transfer order,
petitioner, vide notification dated 28.01.2023, was transferred from Jal
Shakti Division Padhar, District Mandi, Himachal Pradesh to Jal
Shakti Division, Thunag, District Mandi, Himachal Pradesh, against
vacant post, but before he could complete his normal tenure of posting
at afore station, he has been again transferred to far flung area that
too without any justification. He further submitted that besides
District Mandi, petitioner also remained posted in District Shimla and
District Hamirpur during his service tenure. He further stated that
petitioner herein, being responsible officer, never shirked from the
work, rather always joined the duty as was called by the respondent-
department.
3. Pursuant to notices issued in the instant proceedings,
respondents No. 1 & 2 have filed reply, wherein it has been stated that
Transfer Policy formulated by the Government of Himachal Pradesh is
not applicable to Class-I Officer. While fairly admitting factum with
regard to posting of the petitioner at present place of posting, vide
notification dated 28.06.2023, it has been stated in the reply that
petitioner was primarily posted in District Mandi prior to his transfer
to Jal Shakti Circle Thunag.
4. Mr. B.C.Verma, learned Additional Advocate General,
while making this Court peruse reply filed by the respondents,
vehemently argued that prior to petitioner's posting at Thunag, he was
posted at Padhar, District Mandi, Himachal Pradesh, which is at a
distance of 90 Kms. He further submitted that if the entire service
record of the petitioner is seen, it clearly emerges that the majority of
his service has been rendered in District Mandi and as such, no
illegality can be said to have been committed by the respondents,
while issuing impugned transfer order. He further submitted that
Transfer Policy, if perused in its entirety, nowhere suggests that same
is applicable in the case of Class-I Officer, who otherwise being overall
incharge of Circle/Division, is expected to join particular
Circle/Division on the askance of his superior. While refuting the
allegation of the petitioner that impugned transfer order has been
effected on the basis of DO note issued by Mr. Jagdish Reddy, worker
of Congress Party, Mr. B.C.Verma, learned Additional Advocate
General, submitted that impugned transfer order has been issued with
the approval of the competent authority and perusal thereof, nowhere
suggests that same has been issued on the basis of DO note issued by
the above named person.
5. I have heard learned counsel for the parties and gone
through the record.
6. Having taken note of stand put-forth by the respondents
with regard to frequent postings of the petitioner in District Mandi that
too at his request, this Court, vide order dated 26.05.2025, called
upon learned Additional Advocate General, to peruse the record with
regard to request, if any, made by the petitioner to remain posted in
District Mandi in last four years. Mr. B.C.Verma, learned Additional
Advocate General, during proceedings of the case, fairly admitted that
no record exists with regard to request, if any, made by the petitioner
to remain posted in District Mandi, meaning thereby, petitioner
remained posted in District Mandi on account of administrative
exigency, but not on his request. Otherwise also, reply filed by the
respondents, if perused in its entirety, clearly reveals that besides
District Mandi, petitioner also remained posted in District Hamirpur,
District Shimla and District Kangra for a considerable time. Vide
notification dated 28.06.2023 (Annexure P-1), petitioner was
transferred from Jal Shakti Division Padhar, District Mandi, Himachal
Pradesh, to Jal Shakti Division Thunag, District Mandi, Himachal
Pradesh, against vacant post, but interestingly, within a short span of
one and a half year, he again came to be transferred from afore station
to Jal Shakti Circle, Reckong Peo, District Kinnaur, Himachal Pradesh.
As per transfer policy, an employee is expected to stay at one station
for a minimum period of three years. However, in the instant case,
petitioner has been transferred within a short span of one and a half
year. Though Mr. B.C.Verma, learned Additional Advocate General,
vehemently argued that provision with regard to minimum stay of
three years as provided, in the Transfer Policy is not applicable to the
Class-I Officer, but this Court is not persuaded to agree with the
aforesaid submission of Mr. B.C.Verma, learned Additional Advocate
General, because once it is not in dispute that petitioner is an
employee of Government and the Government of Himachal Pradesh
has framed policy to regulate transfers of its employees, distinction
sought to be drawn by the respondents regarding the applicability of
the Transfer Policy is not justifiable.
7. Hon'ble Division Bench of this Court in CWP No.
1863 of 2018 titled as Rattan Chand Vs. State of Himachal
Pradesh & Ors., while deprecating the aforesaid stand of the
respondents, held that possessing power to transfer Class-I Gazetted
Officer is one thing and the manner in which such power is exercised
is altogether different. Most importantly, it came to be held in the
aforesaid judgment that every official, whether Class-IV or Class-I, is
expected to remain posted for an ordinary tenure of three years or so
save where there exist administrative grounds, exigency or public
interest demanding his premature transfer. Relying upon aforesaid
judgment passed by Hon'ble Division Bench of this Court, a
Coordinate Bench of this Court, in CWP No. 2059 of 2024, titled as
Ravinder Kumar Vs. State of Himachal Pradesh, decided on
11.11.2024, reiterated that all incumbents, be it Class-I or belonging
to some other class, should have some reasonable stay at a station.
What that reasonable stay for a Class-I employee can be, of course, is
the prerogative of the State Government and it is for the State
Government to take a call in that regard, but in case, transfer of a
Class-I employee is being effected, after his posting at a station, after
about 4-5 months then there have to be very cogent reasons as to why
such a transfer is being effected.
8. Though Mr. B.C.Verma, learned Additional Advocate
General, with a view to justify the impugned action of the respondents,
vehemently argued that transfer of the petitioner has been effected in
public interest, but neither in impugned transfer order nor in reply,
public interest, if any, has been explained. Mere writing administrative
exigency or public interest may not be sufficient, rather for that
purpose proper explanation is required to be rendered on record,
especially when matter is pending consideration before the Court.
Needless to say, expression of public interest and administrative
exigency has vide meanings and as such, respondent-State being
model employer is expected to render cogent and convincing reasons
for using aforesaid grounds of administrative exigency and public
interest.
9. Since in the case at hand, it is apparent that petitioner
has not completed normal tenure of posting at present place of
posting, coupled with the fact that respondents have not been able to
produce on record communication, if any, submitted by the petitioner
with regard to his request for posting in District Mandi, prayer made
on behalf of the petitioner to quash impugned transfer order dated
24.12.2024 (Annexure P-2), deserves to be allowed.
10. Besides above, this Court finds that there is no specific
denial to the allegation made by the petitioner with regard to his
transfer being effected on the basis of DO Note issued by Mr. Jagdish
Reddy. Though specific averment has been made by the petitioner in
ground C of the petition with regard to DO Note issued by Mr. Jagdish
Reddy, on the basis of which, allegedly transfer of the petitioner came
to be effected, but interestingly, respondents have not bothered to
reply the same in specific terms. What to talk about specific term, even
there is no mention, if any, with regard to averment made by the
petitioner with regard to issuance of DO Note. Needless to say, if an
averment has not been specifically denied, same is deemed to have
been admitted. answer to a specific plea is admission. In view of the
above, this Court is also persuaded to agree with the petitioner that
transfer of the petitioner has been effected on the basis of DO Note,
which is not permissible. In this regard, reliance is placed upon
judgment passed in CWP No. 2862 of 2021, titled as Vipender Kalta
VS. State of Himachal Pradesh & Ors., wherein, it has been held as
under:
"17. The Court thereafter, while discussing the judgments of
the various High Courts including the one referred to above,
observed as under:-
33. From the files which this Court has seen
including the files of these cases, it is apparent that
transfers are being made day in and day out at the
behest of of pubic representatives. It is true that public
representatives have a right to complain against the
working of government officials. However, these
complaints must be verified by the administrative
department and final action has to be taken by the
administrative department. Transfer is not a punishment
and if transfer is inflicted as a means of punishment,
then the whole purpose of making transfers in the public
interest is set at naught. An employee who is rude or
inefficient at one station will not become polite or
efficient at another station. Transfer does not serve any
purpose. If the allegations of the public representatives
made in the complaints against the government servants
are found to be correct, then disciplinary action should
be taken against such government employees. We live in
a democracy and our elected representatives under the
constitution are to work in the legislature and not as
administrators. They cannot start interfering in the
administration or the working of the Executive. This has
already resulted in government servants rushing to
please the political masters at the cost of doing their
duties. This also demoralizes the officers who are in
charge of the administration of the department. It is they
who are the best judges to decide how the department
has to be administered and which employee should be
transferred to which place. The politicians cannot don
the role of administrators. The earlier such inherently
illegal and improper practices are put to an end, the
better it would be for the smooth functioning of the
administration of the State.
34. As far as the concept of judicial review is
concerned, the Apex Court again observed that the Court
should be reluctant in interfering in transfer orders. The
scope of judicial review in the matter of transfer of a
Government employee is limited and the Court should
not interfere in the transfer. The Court cannot substitute
its own opinion for the opinion of the employee.
35. After reviewing the entire law on the subject, we
can without any hesitation come to the conclusion that
the scope of judicial review in transfer matters is very
limited. This Court cannot interfere in the day to day
functioning of the Government departments and it is for
the administrative heads to decide which employee
should be posted at which place. Even earlier, we had
clearly given a number of judgments on these lines.
36. At the same time, this Court cannot shut its eyes
to the increasing number of transfers being made not for
administrative reasons but only with a view to
accommodate favoured employees. As indicated by us
earlier, an employee of the department is also a citizen
of the country and is entitled to the equal protection of
laws. Therefore, the State should always be fair to its
employees. They must all be treated equally."
11. Consequently, in view of aforesaid discussion made
hereinabove as well as law taken into consideration, this Court finds
merit in the present petition and accordingly, the same is allowed.
Impugned transfer order dated 24.12.2024 (Annexure P-2) is quashed
and set aside. Pending applications, if any, stand disposed of.
May 27, 2025 (Sandeep Sharma),
(sunil) Judge
